Is It Just to Trademark Just, or Just Nuts?

     UTICA, N.Y. (CN) - Beech-Nut Nutrition Co. wants a federal court to declare the word "just" to be a descriptive or generic term that cannot be protected by trademark, as a competitor asserts.
     The company, the No. 2 U.S. baby food producer, earlier this year began putting out a new line of all-natural products at a $10 million state-of-the-art plant and headquarters in Amsterdam, N.Y., about an hour west of Albany.
     When the plant opened, the company said it hoped the products would appeal to parents who had turned to making their own baby food.
     "Beech-Nut's new line of whole fruits and vegetables ... contain just whole fruits and vegetables and nothing else," the company says in its federal complaint against organic baby food maker Plum PBC.
     The labels on Beech-Nut's baby food jars say "Just Carrots," "Just Butternut Squash," "Just Raspberry, Apple & Beets" to describe the additive- and preservative-free products.
     "Beech-Nut does not use the term 'just' to identify products which do not contain just fruits or vegetables," according to the complaint.
     Beech-Nut says it received a cease-and-desist letter in June from California-based Plum, accusing it of infringing the JUST trademark.
     Plum, the No. 4 baby food brand, became part of Campbell Soup Co. last year. Its Plum Organics are recognizable as being sold in squeeze pouches, not jars.
     Plum's letter "demands that Beech-Nut cease and desist from infringing the alleged JUST trademark and using the tag lines 'This is not baby food' and 'This is real food for babies,'" Beech-Nut's complaint says.
     The lawsuit contains images of Beech-Nut's "Just Carrots" jarred food and Plum's "Just Mangos" pouch.
     "Plum's 'just mangos' product container contains just mangos," the complaint states. "The term 'just' is used merely descriptively or generically by Plum."
     Beech-Nut says Plum uses the trademark symbol "TM" next to its name on the pouches but not next to JUST.
     Plum contends it owns two U.S. registration numbers for JUST, but Beech-Nut claims Plum's "alleged trademark for JUST ... lacks the requisite legal requirements to be protectable on the Principal Register, under the Trademark Act, or otherwise, or enforceable."
     Plum also claims some trademark rights in the phrases "real food for babies, not just baby food" and "real food, not baby food," Beech-Nut says.
     The Beech-Nut slogans "This is not baby food" and "This is real food for babies" were developed in June 2013 by an outside advertising agency retained to devise a promotional campaign for the new product line, according to the complaint.
     The campaign began in April this year.
     U.S. baby food sales total about $2 billion annually. The premium and organic segments are rapidly expanding, growing at an annual average rate of 43 percent between 2010 and 2012, Campbell Soup said when it announced the acquisition of Plum last spring.
     Beech-Nut, which demands a jury trial, seeks declaratory judgment that it is not infringing "any valid and enforceable trademark rights owned by Plum."
     The company also asks the court "to determine that Plum has no right" to the registration numbers it claims and to order the cancellation "of any registration found to have been granted improvidently."
     It also seeks court costs and attorneys' fees.
     Representing Beech-Nut is Michael Berchou of Phillips Lytle in Buffalo.
     Carla Burigatto, a spokeswoman for Campbell Soup, said her company had a policy of not commenting on pending litigation.
     But she said the trust Plum has built with consumers "is of utmost importance to us."
     "We enforce and defend our valuable trademark rights and we want consumers to be sure of the source of their products," she added.